Exhibit 10.43
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated effective as of March 20, 2000, between
WorldWide Web NetworX Corporation, a Delaware corporation (the "COMPANY"), and
Xxxxx X. Xxxxx (the "EXECUTIVE"), an individual residing at 000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxxxxxxx 00000.
RECITAL:
The parties hereto desire to enter into this Agreement to provide for
the employment of the Executive by the Company and for certain other matters in
connection with such employment, all as set forth more fully in this Agreement.
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein, and intending to be legally bound hereby, the parties to this
Agreement hereby agree as follows:
1. DUTIES. The Company agrees that the Executive shall be employed by
the Company as its Vice President and General Counsel, and the Executive agrees
to be so employed, to devote his best efforts and substantially all of his
business time to advance the interests of the Company and to perform such
executive, managerial, administrative and other duties as are from time to time
assigned to him by the President and Chief Executive Officer of the Company and
are consistent with his position as a senior executive of the Company.
2. TERM. The Executive has been employed by the Company since June 1,
1999. Subject to SECTIONS 4 AND 5, the initial term of the Executive's
employment under this Agreement commenced on January 1, 2000, and shall continue
for a term of 3 years, until December 31, 2002 ("EXPIRATION DATE"). If either
party elects not to renew this Agreement following the Expiration Date, or if
the parties are otherwise unable to agree to mutually acceptable terms for a
renewal period within 180 days prior to the Expiration Date, then (subject to
the provisions of SECTION 16) this Agreement shall terminate effective as of the
Expiration Date.
3. COMPENSATION.
(a) SALARY. During the term of his employment under this
Agreement, the Executive shall be paid an annual salary at the initial rate of
not less than $175,000 (the "BASE SALARY"). The Base Salary may be increased
from time to time by the Board of Directors of the Company (the "BOARD") in its
sole and absolute discretion. The Board shall review the Base Salary at least
annually at the end of each fiscal year of the Company. The Base Salary shall be
paid in accordance with the Company's regular payroll practices. The Company
shall promptly pay to the Executive, in accordance with the Company's regular
payroll practices, a lump sum payment equal to the difference between the salary
that the Executive has received since the Commencement Date and the amount the
Executive would have received had this Agreement been in effect since the
Commencement Date.
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(b) BONUSES. At the end of each fiscal year of the Company
that ends during the term of this Agreement and at such other times as the Board
determines, the Board shall consider the award of a performance bonus to the
Executive for such fiscal year. The award of any bonus shall be in the sole
discretion of the Board.
(c) FRINGE BENEFITS. The Executive shall be entitled to
participate in all insurance, vacation and other fringe benefit programs of the
Company to the extent and on the same terms and conditions as are accorded to
other officers and key executives of the Company from time to time.
(e) REIMBURSEMENT OF EXPENSES. The Executive shall be
reimbursed for all normal items of travel, entertainment and miscellaneous
business expenses reasonably incurred by him on behalf of the Company, provided
that such expenses are documented and submitted in accordance with the
reimbursement policies of the Company as in effect from time to time. The
Company will pay for all fees and associated costs necessary for the Executive
to maintain his licenses to practice law and as a CPA in the jurisdictions in
which he is currently admitted or may be admitted in the future. The Company
will pay for the cost of continuing legal/professional education mandated by the
jurisdictions in which the Executive is currently admitted or may be admitted in
the future. If the Executive relocates at the request of the Board or the
President and Chief Executive Officer, the Company will reimburse the Executive
for the cost of relocating.
(e) STOCK OPTIONS. The Executive and the Company have entered
into a Stock Option Grant Agreement, pursuant to which the Executive has been
granted certain options to purchase 250,000 shares of the Common Stock of the
Company, on the terms and subject to the conditions set forth therein, EXCEPT
that should a Change in Control (as defined below) occur, any options to
purchase securities of the Company that were not previously vested will
immediately vest.
(f) ENTIRE COMPENSATION. The compensation provided for in this
Agreement shall constitute full payment for the services to be rendered by the
Executive to the Company hereunder.
4. DEATH OR TOTAL DISABILITY OF THE EXECUTIVE.
(a) DEATH. In the event of the death of the Executive during
the term of this Agreement, this Agreement shall terminate effective as of the
date of the Executive's death, and the Company shall not have any further
obligation or liability under this Agreement except that the Company shall: (i)
pay to the Executive's estate any portion of the Executive's Base Salary for the
period up to the Executive's date of death that has been earned but remains
unpaid; (ii) pay to the Executive's estate any benefits that have accrued to the
Executive under the terms of the benefit plans of the Company in which he is a
participant, which benefits shall be paid in accordance with the terms of those
plans; and (iii) vest any options to purchase securities of the Company that
were not previously vested pursuant to the schedule in SECTION 5(B).
(b) TOTAL DISABILITY. In the event of the Total Disability (as
that term is hereinafter defined) of the Executive, for (i) a period of 180
consecutive days or (ii) for any 180
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days within a period of 360 consecutive days, at any time during the term of
this Agreement, the Company shall have the right to terminate the Executive's
employment hereunder by giving the Executive 30 days' written notice thereof,
and, upon expiration of such 30-day period, the Company shall not have any
further obligation or liability under this Agreement except that the Company
shall: (i) pay to the Executive any portion of the Executive's Base Salary for
the period up to the date of termination that has been earned but remains
unpaid; (ii) pay to the Executive any benefits that have accrued to the
Executive under the terms of the benefit plans of the Company in which he is a
participant, which benefits shall be paid in accordance with the terms of those
plans; and (iii) vest any options to purchase securities of the Company that
were not previously vested pursuant to the schedule in SECTION 5(B). The term
"TOTAL DISABILITY," when used herein, shall mean a mental or physical condition
that in the reasonable opinion of the Board renders the Executive unable or
incompetent to carry out the essential functions of the job responsibilities he
held or the tasks that he was assigned at the time the disability was incurred.
5. TERMINATION.
(a) TERMINATION BY THE COMPANY FOR CAUSE. The Company may
discharge the Executive and thereby terminate his employment hereunder upon
written notice to the Executive for any of the following reasons: (i) material
violation of any policy regarding substance abuse as may be promulgated by the
Company from time to time; (ii) the willful failure to substantially perform the
duties or responsibilities of his position as those may be delegated or assigned
to the Executive by the President and CEO or by the Board; (iii) any material
breach of any covenant or agreement contained in SECTIONS 6 OR 7 of this
Agreement; (iv) engaging in intentional conduct that causes material damage to
the Company or its business reputation; (v) conviction (by trial or guilty plea)
or a plea of non-contest, NOLO CONTENDERE or similar plea to a felony (or
misdemeanor which the Company determines to have or could have a material
adverse effect on the Company or its reputation) which has become
non-appealable; (vi) adjudication as an incompetent; or (vii) material
misappropriation of any funds or property of the Company materially affecting
the Company, theft, embezzlement or fraud; provided, however, that with respect
only to subsections (i) and (ii) above, the Company shall not discharge the
Executive for cause unless the Executive fails, refuses or for any reason does
not cure such violation to the reasonable satisfaction of the Company within 30
days following written notice from the Company that there exists a reason for
discharge for cause. In the event that the Company shall discharge the Executive
pursuant to this SECTION 5(A), the Company shall not have any further obligation
or liability under this Agreement, except that the Company shall pay to the
Executive: (i) any portion of the Executive's Base Salary for the period up to
the date of termination that has been earned but remains unpaid; and (ii) any
benefits that have accrued to the Executive under the terms of the benefit plans
of the Company in which he is a participant, which benefits shall be paid in
accordance with the terms of those plans.
(b) OTHER TERMINATION BY THE COMPANY. The Company may
discharge the Executive and thereby terminate his employment hereunder at any
time upon 10 business days' prior written notice for any reason other than one
specified in SECTION 5(A). If the Company shall terminate the employment of the
Executive for any reason other than one specified in SECTION 5(A), the Executive
shall be entitled to: (i) be paid any portion of the Executive's Base Salary for
the period up to the date of termination that has been earned but remains
unpaid; (ii) be paid a
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severance payment equal to an amount equal to the Executive's Base Salary for a
period of 6 months, if and only if Executive has been employed be the Company
for a period greater than 6 months; (iii) be paid any benefits that have accrued
to the Executive under the terms of any benefit plans of the Company in which he
is a participant, which benefits shall be paid in accordance with the terms of
those plans; and (iv) have any options to purchase securities of the Company
that were not previously vested vest pursuant to the following schedule:
LENGTH EMPLOYED % OF OPTIONS VESTING
0-3 months 0
3-9 months 40%
9-15 months 60%
15-21 months 80%
more than 21 months 100%
(the sum of options vesting may not exceed 100% of options
granted)
(b) TERMINATION BY THE EXECUTIVE. The Executive may terminate
his employment hereunder at any time upon 10 business days' prior written notice
for Good Reason (as defined below). If the Agreement is so terminated, the
Executive shall be entitled to: (i) be paid any portion of the Executive's Base
Salary for the period up to the date of termination that has been earned but
remains unpaid; (ii) be paid a severance payment equal to an amount equal to the
Executive's Base Salary for a period of 6 months, if and only if Executive has
been employed be the Company for a period greater than 6 months; (iii) be paid
any benefits that have accrued to the Executive under the terms of any benefit
plans of the Company in which he is a participant, which benefits shall be paid
in accordance with the terms of those plans; and (iv) have any options to
purchase securities of the Company that were not previously vested vest pursuant
to the schedule in SECTION 5(B), except in the case of (D) below, which shall be
governed by SECTION 3(E). For purposes of this Agreement, "GOOD REASON" means,
without the Executive's express written consent, any of the following
circumstances:
(A) Executive's removal from his position as Vice
President and General Counsel, or a significant diminution
in the nature or status of Executive's responsibilities;
(B) Executive being assigned to any duties
inconsistent with Executive's status as an executive of the
Company holding the position of Vice President and General Counsel;
(C) A reduction by the Company in Executive's Base
Salary or benefits;
(D) A Change in Control occurs; for purposes of this
SECTION 5(C)(D), a "CHANGE IN CONTROL" means any one of the following: (I) an
acquisition of 50% or more of the combined voting power of all of the Company's
securities, (II) a merger where, following the transaction, the Company's
stockholders own 50% or less of the voting securities of the
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surviving or resulting entity, (III) the liquidation or sale of substantially
all of the assets of the Company, or (IV) the individuals who currently form a
majority of the Board cease to be a majority of the Board, unless the new
directors are nominated for election by the current Board or their nominated
successors; or
(E) Executive reasonably believes that his is so
required or permitted to do so by any applicable rule of professional conduct.
6. NON-DISCLOSURE AND NON-COMPETITION.
(a) NON-DISCLOSURE. The Executive acknowledges that in the
course of performing services for the Company, the Executive may have had access
to confidential and proprietary information and records, data and other trade
secrets of the Company ("CONFIDENTIAL INFORMATION"). Confidential Information
shall include, without limitation, the following types of information or
material, both existing and contemplated, regarding the Company, or its
subsidiary or affiliated companies: corporate information, including plans,
strategies, policies, resolutions, and any litigation or negotiations; marketing
information, including strategies, methods, customers, prospects, or market
research data; financial information, including cost and performance data, debt
arrangement, equity structure, investors, and holdings; operational and
scientific information, including trade secrets and technical information; and
personnel information, including personnel lists, resumes, personnel data,
organizational structure, compensation structure, and performance evaluations..
The Executive agrees that, during his employment by the Company hereunder and
after the termination or expiration of the Executive's employment hereunder, to
keep the Confidential Information secret and confidential; not to publish,
disclose or divulge the Confidential Information to any other party; not to use
any of the Confidential Information for the Executive's own benefit or to the
detriment of the Company without the prior written consent of the Company,
whether or not such Confidential Information was discovered or developed by the
Executive. The Executive also agrees not to divulge, publish or use any
proprietary and/or confidential information of others that the Company is
obligated to maintain in confidence for the relevant time period of the
Company's obligation. Notwithstanding the foregoing, the provisions of this
SECTION 6(A) will not apply when the Confidential Information (i) is publicly
disclosed other than by the Executive or (ii) is the subject of a valid order of
a court or administrative agency.
(b) NON-COMPETITION. The Executive agrees that, during his
employment by the Company hereunder and for an additional period of 1 year after
the termination or expiration of the Executive's employment hereunder, neither
the Executive nor any corporation or other entity in which the Executive may be
interested as a partner, trustee, director, officer, executive, employee, agent,
shareholder, lender of money or guarantor, or for which he performs services in
any capacity (including as a consultant or independent contractor) shall at any
time during such period (i) be engaged, directly or indirectly, in any
Competitive Business (as that term is hereinafter defined) or (ii) solicit,
hire, contract for services or otherwise employ, directly or indirectly, any of
the executives of the Company. Nothing herein contained shall be deemed to
prevent the Executive from investing in or acquiring one per cent or less of any
class of securities of any company if such class of securities is listed on a
national securities exchange or is quoted on the Nasdaq Stock Market. For
purposes of this SECTION 6(B), the term "COMPETITIVE
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BUSINESS" shall mean any business that engages in the development of businesses
that conduct business-to-business transactions via an electronic commerce
system, or which engages in any other activities that are competitive with the
business of the Company at the time of termination or expiration of this
Agreement. If the Executive violates any provision of this SECTION 6(B), the 1
year restrictive period set forth herein shall be extended for the duration of
any such violation, so that the Company enjoys the full term of such restrictive
period. Notwithstanding the foregoing, the Company acknowledges and agrees that
the provisions of this SECTION 6(B) shall not apply if the Executive's
employment is terminated under the provisions of SECTIONS 5(B) OR 5(C).
7. COMPANY DOCUMENTATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all documentation, disks, programs,
data, records, drawings, manuals, reports, sketches, blueprints, letters, notes,
notebooks and all other writings, electronic data, graphics and tangible
information and materials of a secret, confidential or proprietary information
nature relating to the Company or the Company's business that are in the
possession or under the control of the Executive.
8. INJUNCTIVE RELIEF. The Executive acknowledges that his compliance
with the agreements in SECTIONS 6 AND 7 is necessary to protect the good will
and other proprietary interests of the Company and that he is one of the
principal executives of the Company and conversant with its affairs, its trade
secrets and other proprietary information. The Executive acknowledges that a
breach of any of his agreements in SECTIONS 6 AND 7 hereof will result in
irreparable and continuing damage to the Company for which there will be no
adequate remedy at law; and the Executive agrees that in the event of any breach
of the aforesaid agreements, the Company and its successors and assigns shall be
entitled to injunctive relief and to such other and further relief as may be
proper.
9. SUPERSEDES OTHER AGREEMENTS. This Agreement supersedes and is in
lieu of any and all other employment arrangements between the Executive and the
Company.
10. AMENDMENTS. Any amendment to this Agreement shall be made in
writing and signed by the parties hereto.
11. ENFORCEABILITY. If any provision of this Agreement shall be invalid
or unenforceable, in whole or in part, then such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law as if such provision had been originally
incorporated herein as so modified or restricted or as if such provision had not
been originally incorporated herein, as the case may be.
12. CONSTRUCTION. This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of New Jersey.
13. ASSIGNMENT.
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(a) BY THE COMPANY. The rights and obligations of the Company
under this Agreement shall inure to the benefit of, and shall be binding upon,
the successors and assigns of the Company. The Company shall require each and
every successor (whether direct or indirect, by asset or stock purchase, share
exchange, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to the Executive, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "the Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as provided above that executes and
delivers the agreement provided for in this SECTION 13(A) or that otherwise
becomes bound by all the terms and provisions of this Agreement by operation of
law. Notwithstanding the provisions of this Section 13(a), if the Company and
the Executive agree to the employment of the Executive by an affiliate or
subsidiary of the Company, then this Agreement may be assigned by the Company to
such affiliate or subsidiary.
(b) BY THE EXECUTIVE. This Agreement and the obligations
created hereunder may not be assigned by the Executive, but all rights of the
Executive hereunder shall inure to the benefit of and be enforceable by his
heirs, devisees, legatees, executors, administrators and personal
representatives.
14. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be deemed to have been given when mailed by
certified mail, return receipt requested, or delivered by a national overnight
delivery service addressed to the intended recipient as follows:
If to the Company: WorldWide Web NetworX Corporation
000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: President and CEO
Fax: 000-000-0000
If to the Executive: Xxxxx X. Xxxxx
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Any party may from time to time change its address for the purpose of notices to
that party by a similar notice specifying a new address, but no such change
shall be deemed to have been given until it is actually received by the party
sought to be charged with its contents.
15. WAIVERS. No claim or right arising out of a breach or default under
this Agreement shall be discharged in whole or in part by a waiver of that claim
or right unless the waiver is supported by consideration and is in writing and
executed by the aggrieved party hereto or his or its duly authorized agent. A
waiver by any party hereto of a breach or default by the other party hereto of
any provision of this Agreement shall not be deemed a waiver of future
compliance therewith, and such provisions shall remain in full force and effect.
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16. SURVIVAL OF COVENANTS. The provisions of SECTIONS 6, 7 AND 8 hereof
shall survive any termination or expiration of this Agreement. Furthermore, any
provision of this Agreement which provides a benefit to the Executive and which
by the express terms hereof does not terminate upon the termination of the
Executive's employment shall remain binding upon the Company until such time as
such benefits are paid in full to the Executive or his successors.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as
of the date first above written.
WORLDWIDE WEB NETWORX CORPORATION
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: President and CEO
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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